• Samuel Lebens

Emor: Marx and Midrash

In this week’s Torah reading, the holiness code continues. Having discussed the sanctity of the people in general, last week; this week’s reading moves on to more specific cases: the holiness of the priests, the holiness of the high priest, the holiness of the sacrifices in the Tabernacle, the holiness of certain times of the year (i.e., the Sabbath, and the festivals), and the holy place of the Tabernacle itself (the space just before the holy of holies).


In its discussion of the holy times of the year, the following verses about the festival of Sukkot appear (Leviticus 23:39-43):

But on the fifteenth day of the seventh month, when you have gathered in the fruits of the land, you shall celebrate the festival of God for seven days. On the first of these days shall be a day like a Sabbath, and [so too] on the eighth day [immediately after the seven-day festival] shall be [another] Sabbath-like day. And you shall take for yourself, on the first day [of this festival] the fruit of goodly trees, branches of palm-trees, and branches of thick trees, and willows of the brook, and you shall rejoice before the LORD your God for seven days. And you shall celebrate it as a feast for the LORD seven days in the year. It is an eternal statute for the generations; you shall celebrate it in the seventh month. You shall dwell in booths [for the] seven days [of this festival]; every citizen of Israel shall dwell in booths; in order that future generations will know that I made the Israelite people live in booths when I brought them out of the land of Egypt, I the LORD your God.

The festival of Sukkot, as described here, has two distinctive components. The first is that we have to take for ourselves four botanical species. This is the Biblical source for the ritual of taking a palm branch, twigs of Myrtle, twigs of willow, and a citrus fruit known as an etrog, and using them as a prop in our worship on the festival of Sukkot. The second distinctive component is that we have to dwell in booths. This is the Biblical source for the huts that we build and live within (weather permitting) during the festival; the huts are called sukkot, which is the source of the festival’s name.

The sages see in our verses a key difference between the two components of the festival. Regarding the four species, we are told to take them for ourselves. From this, they derive the notion that the four species have to belong to the person using them. You cannot borrow them from someone else. These things need to be yours. This is not the case with a sukkah.


If, for the duration of the festival, you are a guest in somebody else’s sukkah, you will have fulfilled your obligation. Why? Because the verse talks about all of the citizens of Israel dwelling in sukkot. It does so, they say, “to teach us that all Jews are worthy of sitting in the same sukkah.” [The sages are also playing here with the fact that the word sukkot in verse 42 appears in a truncated form; a form which almost obscures the fact that it’s talking about booths in the plural. So to speak: one booth would do.]


According to the sages, then, and this view became the normative halakha, there is a central dissimilarity between a sukkah and the four species. Namely: you can fulfill the sukkah commandment in a sukkah that doesn’t belong to you, but you can’t fulfill the commandment concerning the four species if they don’t belong to you.


One Rabbi, Rabbi Eliezer, objects. Just as you’re commanded to take the four species for yourself, you’re also commanded, in the book of Deuteronomy (16:13), to make the entire festival for yourself. Surely this applies to the four species and to the booths. No! The Rabbis reject this minority opinion. The verse about all of the citizens of Israel, and its romantic vision of us all sharing the same booth, prevailed over Rabbi Eliezer’s appeal to Deuteronomy. And yet the sages couldn’t ignore Rabbi Eliezer’s verse, and its distinctive wording. So, they learnt from Deuteronomy that even if the booth needn’t belong to you personally, even if it can be borrowed, it certainly can’t be stolen!


So, in addition to the central dissimilarity between sukkot and the four species, the sages recognised a central similarity too. The central similarity is that you cannot fulfill either obligation with stolen goods; not with a stolen sukkah, and not with stolen species. But, according to the sages, remember: a borrowed sukkah is fine, while borrowed species are no good; the four species need to be yours.


I think that this distinction, drawn by the Rabbis, between the two components of the festival of Sukkot, gets to the heart of a widespread distinction in Rabbinic thought between the ownership that we have over movable items, and the ownership that we have over land.


Tractate Sukkah has a chapter named after the case of a stolen lulav [a shorthand for talking about the four species]. One of the central lessons that we learn from that chapter is the very general principle that you cannot fulfill a commandment with the ill-gotten gains of a sin. I want to concentrate here on a Midrash, about a stolen lulav which, I think, gets to the heart of what the laws of lulav are supposed to teach us.


‘Somebody who uses a stolen lulav; to what can the situation be compared?’ Rabbi Levi answers this question, in our Midrash, with the following story about a highwayman who waits at a crossroad in order to accost passers-by. One time, an official of the king came by to collect taxes from the province. The highwayman accosted him and stole everything that he had.


After some time, the highwayman was apprehended, and thrown into prison. He was waiting for his day in court before the king. In the meantime, the king’s official, the one who had been the victim of the crime, heard that his robber had been caught. He, the victim of the crime, decides to visit the accused, saying, ‘Give me back what you stole from me, and I will provide you with a positive character reference before the king.’


Despondently, the highwayman responds, ‘from all that I stole from you, nothing remains but this mat that I sit upon.’ I wish I could give it all back to you, but I can’t.


‘Well, at least give me back the mat that you stole from me,’ said the official, ‘and I will provide you with a positive character reference before the king.’


The next day, the highwayman was brought before the king for judgement and sentencing. The king asked whether the defendant had somebody willing to offer a positive character reference. The bandit said, ‘Yes, your own trusted official will provide me with a positive character reference.’


Up stands the official, in the witness stand, before the king. The king turns to the official and asks: ‘You are a wise man, knowledgeable in the laws of the land, what should the verdict be?’

The official responded, ‘Your majesty sent me to collect taxes in this province, and I was accosted by a highwayman who stole everything I had. And this mat, which was stolen from me, and found in his possession, proves that the defendant is guilty. It was he who accosted me and robbed me.’


The audience at the trial gasped and exclaimed: ‘Woe unto this man who has turned his defence council into a prosecution council’; whose so-called positive character reference chooses to condemn him in public!


Unto now, I have been paraphrasing the Midrash, but here, in its own words, is the conclusion we’re supposed to draw from this parable:

‘So too, a person takes a lulav to earn merit, but if it is stolen, it screams out before the Holy One, blessed be He, ‘I am stolen! I am plundered!’ And the angels gasp and exclaim, ‘Woe unto this man who has turned his defence council into a prosecution council.’’

As is so often the case, and as regular readers of this series will be expecting, there is a subtle mismatch between the parable and the case we’re supposed to be talking about. In the parable there are the following five characters:

  1. The king

  2. The highwayman (the criminal)

  3. The king’s official (the victim of the crime)

  4. The official’s mat [I’m using the phrase ‘character’ very loosely here!]

  5. The audience in court

But, in the end of the Midrash, where the parable is unpacked for us, there are only four characters mentioned:

  1. God

  2. The person who stole the lulav (the criminal)

  3. The lulav

  4. The angels

The king corresponds to God. The highwayman corresponds to the person who stole the lulav. The angels correspond to the audience in court. But the official and the mat, two separate characters in the parable, get merged into one character when the parable is unpacked; they both get merged into the lulav; a character that both gets stolen and then screams out, itself, in protest before the King of Kings.


Merging the King’s official and the official’s mat into one character, the Midrash doesn’t want to distinguish between the item that was stolen, the lulav, and the person from whom it was stolen. When you look at an object, do you just see the object, or do you ‘see’, in some broader sense of the word, what that object stands for?


The rabbis are encouraging us, through reflection upon the laws of the four species, which cannot be stolen, and which must be rightfully owned, that there is more to an object than initially meets the eye. A thief might just see a piece of silver, but he doesn’t see that it might be a family heir-loom passed down by generations of a family, absorbing in each generation of that chain, new layers of significance for its inheritors.


An ethical consumer is somebody who doesn’t just see the objects in front of her, but she tries to understand their ethical and social significance. This is similar to our discussion of a holy person last week; a person who sees more than objects. An object with one history might look the same, from the outside, as an object with a different history, but a sensitive soul is supposed, somehow, to see the difference. A stolen lulav and a rightfully owned lulav will look the same from the outside, but, according to the rabbis, they are not the same. One of them accrues merit for its owner, while the other one is screaming out for justice.


John Locke

These reflections on the significance of ownership are echoed in an important halakhic principle. According to the Talmud (Baba Kamma 99a), if I own a piece of wood, and employ you to fashion a table out of it, then even if you spend no money on the job, once you’ve fashioned that raw material into something of more worth, you become a co-owner in that piece of wood, through your skilled labour. You put some of yourself into the raw materials, so to speak. When I pay you, I don’t merely pay you for your labour. I also have to buy you out of your new share in the piece of wood; the share that you acquired by mixing your labour into it. One is reminded of John Locke’s notion that to take something ownerless and to make it yours, you first of all have to mix your labour into that thing. Since the labour is yours, so is the object that you laboured upon.

Karl Marx

But I think that John Locke is a red herring here. It’s not the labourer’s labour that gets mixed into an object. At least, not according to our Midrash. Our Midrash would surely say that it’s the labourer’s identity. This sounds more like Karl Marx. One aspect of a capitalist society that Marx attacked, he called alienation. If you sit on a conveyor belt, screwing some bolt, or hammering some nail, into a product that rolls past you, and that you never see through to completion, then you will not see yourself reflected in the final product; you will be alienated from the fruit of your labour. In fact, you may never see the fruit of your labour. In the alternative that Marx envisages, when a person makes something for another person:

Each of us would have, in two ways, affirmed himself, and the other person. (1) In my production I would have objectified my individuality, its specific character, and, therefore, enjoyed not only an individual manifestation of my life during the activity, but also, when looking at the object, I would have the individual pleasure of knowing my personality to be objective, visible to the senses, and, hence, a power beyond all doubt. (2) In your enjoyment, or use, of my product I would have the direct enjoyment both of being conscious of having satisfied a human need by my work, that is, of having objectified man’s essential nature, and of having thus created an object corresponding to the need of another man’s essential nature . . . Our products would be so many mirrors in which we saw reflected our essential nature.

In just this way, Jewish law, through the eyes of our Midrash, at least, acknowledges the intimate relationship that people hold to the things that we make and own; so many mirrors in which, if we're sensitive enough, we can see the image of those who make and own them. For people who only know a caricature of Marx’s philosophy, the notion that he romanticises the relationship between a person and the products that he owns might sound surprising. Doesn’t Marx hate private property?


Well, not exactly. In the second chapter of the Communist Manifesto, he writes:

The distinguishing feature of Communism is not the abolition of property generally, but the abolition of bourgeois property.

Marx’s point is that the communist doesn’t want to get rid of all property. He’s still allowed to own his own toothbrush! Rather, Marx seeks to draw a distinction between property and bourgeois property. Regular property includes all movable items, like your lulav. Marx has no desire to get rid of that sort of property. On the contrary, he sees those items as self and other-affirming mirrors of the soul. The property he wants to get rid of, ‘bourgeois property’, is, to simplify matters a little bit: land holdings.


If a person own large tracts of land, then he owns not just the products of the field, but the means of producing those products. Nobody should have a right to do that, according to Marx. Now, of course, Jewish law is quite different. To all intents and purposes it does allow people to have private land holdings. But what the law recognises is that that ownership is only skin deep. This recognition comes to the fore in the Rabbinic treatment of the booth – the sukkah – and its difference from the lulav.

Even though we know that you don’t have to own your own sukkah to fulfill the commandment, you might think that the laws of sukkah still encode a similar message about respecting people’s property rights, since the law does go out of its way to legislate against sitting in a stolen sukkah. The only problem is that, as you trace the evolution of the laws of a sukkah, it becomes increasingly clear that most of the cases that you would intuitively call a stolen sukkah are kosher. Look at the following cases, for example:


Case 1

Simon is sitting in his own sukkah, built with his own raw materials on his own land. In barges Reuben from the street. Reuben picks Simon up by the scruff of his neck, and forcibly evicts Simon from his own sukkah. Reuben, the squatter, sits down and enjoys a meal in Simon’s sukkah.


Case 2

Reuben sneaks into Simon’s garage in the dead of night and steals all of the raw materials that Simon was going to build his sukkah from. Reuben takes those stolen materials back to his house, and builds a sukkah from that stolen property, on his own land. During the festival, Reuben sits down in this newly built sukkah, and enjoys a meal.


Case 3

Reuben has legally acquired all the materials he needs to build a sukkah, but he can’t find a plot of land to build it on. He therefore trespasses onto Simon’s land, and builds his sukkah there, against Simon’s will. During the festival, Reuben sits down in his newly built sukkah, built on Simon’s land, without Simon’s permission, and enjoys a meal.


In normal parlance, one might want to call all three of these cases, a case of a stolen sukkah. But the remarkable fact of the matter is that in each of these cases, though Reuben clearly does something illegal and breaks any number of Jewish laws, he does fulfil the obligation to dwell in a sukkah.

Case 1 was, at least, subject to a dispute between Rabbi Eliezer and the sages. Rabbi Eliezer says that in case 1 Reuben doesn’t fulfil his obligation to dwell in a Sukkah. But the sages, whose view became the normative halakha, disagreed. According to them, though Reuben has behaved despicably, and they wouldn’t want to endorse or encourage such behaviour, Reuben has fulfilled his obligation to dwell in a Sukkah. But, how can that be? We’ve already seen that the sages invalidate a stolen Sukkah. How can this not be considered a case of a stolen Sukkah? The Talmud explains (Ibid.):

The sages are ruling in line with their principle that a person can fulfil his obligation in the sukkah of his fellow, [in addition to the further principle that] land is never considered to be stolen, so this sukkah is a borrowed sukkah.

What does it mean that ‘land is never considered to be stolen’? It certainly doesn’t mean that you’re allowed to do whatever you want with other people’s land. It certainly doesn’t mean that people don’t have exclusive rights to use their own land as they see fit. A whole tractate of the Talmud is dedicated to the delineation of people’s rights over the land that they own (Tractate Baba Batra). What’s really going on, over here, is that, according to the sages, the land itself never takes on the status of ‘a stolen item’, even if trespassing and using land without the permission of the owner is a sin, Jewish law doesn’t regard land itself as a stolen good.


There are downstream practical consequences of the fact that land never takes on this status. For instance, in Jewish law, the rightful owner of a stolen object cannot sell that object on to a third party all the while that the object remains stolen. If you want to sell your stolen car, for instance, you’ve got to wait until it’s been returned to you. It’s still yours, but you can’t sell it. And yet, given that land never takes on the status of being a stolen item, its rightful owner can still sell it, even if squatters have taken it over and locked the owner out.


If land can never be considered stolen, then Reuven, in case 1, fulfills his obligation. What did he steal? He didn’t steal the land that the sukkah is sitting on, since land isn’t ever considered to be stolen. He didn’t steal the walls or the roof of the sukkah since he didn’t even touch them. There has been no theft. The sin that has occurred here is the violence done to Simon, and the fact that Reuven is borrowing this sukkah without Simon’s consent, but technically, it isn’t stolen, and so the sukkah is kosher for Reuven to use.


The same can be said for Case 3. In case 3, Reuven clearly owns the roof and the walls of the structure. He built them himself with raw materials that he rightfully owned. He didn’t steal the land, since land is never considered to be stolen. He’s squatting on Simon’s land. He shouldn’t be doing that. But nothing here has been stolen, so, at least as far as the sages are concerned, this isn’t a case of a stolen Sukkah. Ex post facto, it’s kosher for Reuven to use.


Case 2 is presented as a case that even Rabbi Eliezer agrees to be kosher. Why? Because when you steal something, the Bible obligates you to return it to its rightful owner. But, if you steal building materials and then use them to construct a structure, then the Rabbis allow you to return the worth of the building materials to the victim, instead of the materials themselves.


The reason for this Rabbinic institution is that if a repentant thief has to pull down his own house in order to rehabilitate himself into society, to give back the stolen raw materials that he’s already used, then he’s less likely to take the plunge and repent. What this means for us is that once Reuven has used stolen goods to construct a sukkah, the status of ‘being stolen’ and ‘being owed to another’ is removed from them and passes on to a sum of money that Reuven now owes to Simon. Consequently, the sukkah itself is no longer considered to be a stolen good. Ex post facto, the sukkah is kosher.


But, if cases 1, 2 and 3 are not considered to be stolen Sukkot, then what on earth were the Rabbis coming to invalidate when they said that stolen sukkot were not legal? What would be considered to be a stolen sukkah? Rashi is sensitive to this question, and he writes:

When the Rabbis concede [that a] stolen [sukkah isn’t kosher], they’re not talking about stealing a sukkah that remains attached to the ground [i.e. Case 1], and they're not talking about when you steal the raw materials and make a sukkah from them [i.e. Case 2]; they’re only talking about a case where you stole a ready-made portable sukkah [such as might be found] on top of a carriage, or on a boat.

In the limited case where you pick up an entire sukkah and move it, without taking it apart and rebuilding it, can you truly be said to be sitting in a stolen sukkah, and that’s the case that the Rabbis would rule to be invalid.

If the commandment of lulav is centrally concerned with the relationship between owners and their objects, and investing possessions with meaning, significance, and ethical status, then the laws of the sukkah seem to stand in stark contrast. This contrast maps on surprisingly well to Marx’s distinction between personal and bourgeois property. Personal property, like a lulav, is a mirror to the soul. Bourgeois property, like land, Jewish law grants us rights over; but those rights seem somehow skin deep.


A central principle here is that ‘land cannot be stolen’. Perhaps that principle is based on the following thought. Every fifty years, Biblical law mandates massive redistribution of land holdings. You can’t sell land for more than fifty years. God explains why (in next week’s reading, Leviticus 25:23): ‘Do not sell the land for all time, since the land is mine; you are resident strangers with me.’ Your possession over land is merely symbolic; it isn’t real. All you have is an exclusive right of use. The land belongs to God.


Rabbi Samson Raphael Hirsch

In the following quote, Rabbi Hirsch doesn’t focus, per se, on the comparison between the stolen sukkah and the stolen lulav; but he does focus on a similar distinction. We leave our homes, and dwell in sukkot to renounce our dependence upon property and wealth, whereas we have to own our lulavs, and (where possible) spend money to buy a particularly beautiful set. In his words:

The Sukkah negates material possessions as ultimate value; the lulav links us again with our dependence upon our goods and chattels. The sukkah teaches us not to appraise too highly our worldly goods, the lulav to value them at their true worth. The sukkah raises us above our property to God alone; the lulav teaches us to be imbued with the spirit of God and even to exalt our possessions as God-given. The sukkah prevents us from becoming too earthly, the lulav reminds us not to soar too high above the earthly. The sukkah protects us from becoming debased by out wealth, the lulav teaches us to cherish our possessions and dedicate them to sacred purposes as the gift of God. The lesson of the sukkah is that the acquisition of goods is not the sole aim of life; the lulav teaches us to apprehend goods as instruments for our way of life before God; and so it brings us שמחה, joy in living before God, in a life of godliness. For if life is understood thus, it makes no difference whether you attain much or little; the assessment of your life lies in whether you have lived it dutifully with your much or your little.

It is the tension between the laws of the sukkah and the laws of the lulav, rooted in the verses of this week’s reading, as they refract through the Rabbinic imagination, that teach us to place exactly the right degree of weight upon the importance of material possessions. And, unlike Karl Marx, the laws of this festival teach us that whether we have a lot or a little, we have done very well indeed if we have dedicated it all to the service of a life lived in accordance with the will of God.

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